Thank You Justice Cady, Your Words in “Varnum v Brien” Will Get a Lot of Attention — As Well They Should.
If you are deciding a Very Big Case, your judicial opinion is going to get a lot of attention and it behooves you to write it well.
If you want to know what a very well-written opinion looks like, let me point you to the work of Iowa Supreme Court Justice Mark Cady in Varnum v Brien [pdf], which struck down Iowa’s prohibition on same-sex marriage (internal citations omitted and emphasis added):
As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” This concept is evident in our past cases.
In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, and Coger v. North West. Union Packet Co., we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education. Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois decision to deny women admission to the practice of law, see Bradwell v. Illinois, and twenty five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood. In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the absolute equality of all” persons before the law as “the very foundation principle of our government.” See Coger.
So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?
Some judicial opinions are impenetrable, even to other judges. This is not one of those opinions. By the end of it, the answer to that question above is inescapable: it can’t:
Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution. This record, our independent research, and the appropriate equal protection analysis do not suggest the existence of a justification for such a legislative classification that substantially furthers any governmental objective. Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.
Point by point, Cady takes apart the justifications offered by the defense, like maintaining traditional marriage . . .
If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed.
. . . or the promotion of optimal environment for raising children . . .
Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents. On the other hand, we acknowledge the existence of reasoned opinions that dual-gender parenting is the optimal environment for children.These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies.
. . . or promotion of procreation . . .
While heterosexual marriage does lead to procreation, the argument by the County fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, then the proffered classification must work to achieve that objective. . . . The briefs, the record, our research, and common sense do not suggest such an outcome.
. . . or promoting stability in opposite-sex relationships . . .
While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective.
. . . or the conservation of state resources . . .
[T]he County hypothesizes that, due to our laws granting tax benefits to married couples, the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage. Certainly, Iowa’s marriage statute causes numerous government benefits, including tax benefits, to be withheld from plaintiffs. Thus, the ban on same-sex marriages may conserve some state resources. Excluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.
This case, as Cady points out at the very beginning, is about nothing less than the protection and preservation of the rights of ordinary people:
This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected—a belief embraced by our state motto [“Our liberties we prize and our rights we will maintain.”].
Jason Morgan, one of the plaintiffs in the case, said the same thing in his own words: “After 11 and a half years of waking up next to Chuck, of going through thick and thin, sickness and health, the death of his mother a couple years ago, vacations, family holidays, adopting two children, watching our children learn to walk, our youngest son started preschool last fall — if that’s not love and commitment, if that’s not family, if that’s not marriage, I don’t know what is.”
I don’t either, Jason. Congratulations to you, your partner, and the other plaintiffs in the case — and many, many thanks to Justice Cady for his clear writing and to his colleagues for their unanimous concurrence.